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2019 DIGILAW 177 (HP)

Rahul Chauhan v. State of Himachal Pradesh

2019-02-08

SANDEEP SHARMA

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JUDGMENT : SANDEEP SHARMA, J. 1. Bail petitioner namely Rahul Chauhan, has approached this court in the instant proceedings filed under S.438 Cr.P.C., for grant of pre-arrest bail in FIR No. 154 of 2016, dated 23.12.2016, under Ss.420, 467, 468, 471 and 120B IPC, registered at Police Station, New Shimla, Himachal Pradesh. 2. Sequel to order dated 21.1.2019, whereby bail petitioner was ordered to be enlarged on bail in the event of his arrest, ASI Yudhister Singh has come present with the record. Mr. Dinesh Thakur, learned Additional Advocate General has also placed on record status report, prepared on the basis of investigation carried out by the investigating agency. Record perused and returned. 3. Mr. Dinesh Thakur, learned Additional Advocate General, on the instructions of the Investigating Officer, who is present in the court, fairly stated that the bail petitioner has joined the investigation in terms of order dated 21.1.2019 and he is fully cooperating. Mr. Thakur, further contended that though the investigation is complete, but amount allegedly procured by the wife of the bail petitioner on the basis of fake bills from the Himachal Pradesh Gramin Bank, Khalini Branch, is still to be recovered. He further contended that in case, this court intends to grant bail to the bail petitioner, he be directed to make himself available for investigation and trial, as and when required by the investigating agency. 4. Careful perusal of the record/ status report reveals that the Branch Manager, Himachal Pradesh Gramin Bank, Khalini lodged a complaint on 23.12.2016 with the Police Station, New Shimla, alleging therein that Smt. Vinita Chauhan, i.e. wife of the present bail petitioner, cheated the Bank by availing loan amounting to Rs. 21,60,000/-, on the basis of fake bills. Branch Manager further alleged in the complaint that the Bank financed the Excavator Machine AAR CEE RELTECH PRIVATE LIMITED for Rs. 21,60,000/- on 9.1.2015. The Director of Company, namely Smt. Vinita Chauhan, who happens to be wife of the bail petitioner, with an intention to cheat the Bank, gave fake bills and did not purchase the machine. He further alleged that now the borrower is not repaying the loan and as such, appropriate action be taken against her and the present bail petitioner, in whose account, amount was transferred. 5. He further alleged that now the borrower is not repaying the loan and as such, appropriate action be taken against her and the present bail petitioner, in whose account, amount was transferred. 5. As per record, Vinita Chauhan prepared forged invoice and after sanction of loan, deposited the same in her account maintained in the Maharashtra Bank, Solan and thereafter a sum of Rs. 24,00,000/- (Rs. 15,00,000/- and Rs. 9,00,000/-) was further transferred into the account of the bail petitioner. Though a case was also registered against the Bank Manager, namely Om Parkash Kaundal, but he has been already ordered to be enlarged on bail by the learned Sessions Judge, Solan. 6. Mr. Mohan Sharma, learned counsel representing the bail petitioner further contended that the wife of the bail petitioner is absconding and is not living with the bail petitioner, as such, bail petitioner is not having any knowledge with regard to whereabouts of his wife, Vinita Chauhan. Mr. Sharma, further contended that the present bail petitioner met with an accident in the year 2018 and he remained admitted at PGI Chandigarh, for a considerable time. With a view to substantiate his aforesaid submission, Mr. Sharma, made available medical record pertaining to treatment being availed by the bail petitioner from the PGI. Investigating Officer has also fairly admitted the factum with regard to accident of the bail petitioner and his treatment at PGI. 7. Though the record/status report clearly reveals that the wife of the bail petitioner availed loan amounting to Rs. 21,60,000/- from the complainant Bank on the basis of forged bills, but there is no evidence available on record at this stage suggestive of the fact that present bail petitioner, who is husband of the main accused, Smt. Vinita Chauhan, connived and conspired with her for availing the loan on the basis of forged bills. Only allegation against the bail petitioner is that a sum of Rs. 24,00,000/- subsequently came to be deposited in his account, in two installments from the account of Vinita Chauhan, who is still absconding. 8. Only allegation against the bail petitioner is that a sum of Rs. 24,00,000/- subsequently came to be deposited in his account, in two installments from the account of Vinita Chauhan, who is still absconding. 8. Leaving everything aside, factum with regard to availing of loan facility on the basis of fake bills, is yet to be established on record by the prosecution by way of leading cogent and convincing evidence as such, this court sees no reason to keep the bail petitioner behind the bars, for an indefinite period, especially when he is medically unfit. 9. Albeit, aforesaid aspects of the matter would be considered and decided by the learned trial Court, in the totality of evidence placed before it by the investigating agency, but, this court sees no reason to curtail the freedom of the bail petitioner, especially for the reasons stated herein above. 10. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held as under: "2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in, In Re-Inhuman Conditions in 1382 Prisons." 11. By now it is well settled that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation, (2012) 1 SCC 40 ; has been held as under:- "The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the propose of giving him a taste of imprisonment as a lesson." 12. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 13. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 13. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218 , Hon'ble Apex Court has held as under: "This Court in Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 40 , also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 14. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 14. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another, (2010) 14 SCC 496 , has laid down the following principles to be kept in mind, while deciding petition for bail: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 15. In view of above, present petition is allowed and order dated 21.1.2019, is made absolute subject to petitioner's furnishing fresh bail bonds in the sum of Rs. 5,00,000/- (Rs. Five Lakh) with one local surety in the like amount, to the satisfaction of the Investigating Officer concerned, besides the following conditions: (a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; (b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and (d) He shall not leave the territory of India without the prior permission of the Court. (e) He shall surrender passport, if any, held by her. 16. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 17. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone. The petition stands accordingly disposed of.